Does she appeal to the Constitution? Certainly the Constitution says nothing about homosexuality or abortion (despite what activist courts have said). But the Constitution does assign the authority to Congress (not the courts) to establish rules for a well-functioning military. That’s why Kagan’s cries of unjust discrimination by the military are false. She needs to understand that military service is not a right. As I’ve argued before, for the sake of national security, the military rightfully discriminates against numerous behaviors and conditions. Recruits can only qualify if they meet rigorous physical and mental standards and agree to give up certain behaviors (that’s why it’s called “service”). This has always been true about the world’s greatest military beginning with George Washington’s army. Since joining the military is not a constitutional right, along with these other reasons, “Don’t Ask, Don’t Tell” is certainly constitutional.
Does Ms. Kagan appeal to God and Natural Law for her standard? I doubt she would go there. If so, she would have to make the untenable case that God believes homosexual behavior and abortion are moral rights. That’s anything but self-evident, as evidenced by the texts of all major religions, the “laws of nature,” and the design of the human body. Our founders called homosexuality a “crime against nature” for a reason.
If Natural Law and the Constitution are not standards of justice for Ms. Kagan, what is? She’s left with nothing but her own personal moral standard. “Who sez?” is not Natural Law or the Constitution, but Elena Kagan. And that’s exactly the problem with activist judges. They ignore the laws of nature and the laws of the land to legislate their own laws based on their own personal standard of morality—and in the case of liberal activists, it's usually a very bizarre, morally inverted standard.
“But you can’t legislate morality!” Nonsense. All laws legislate morality. Each law declares one behavior right and its opposite wrong. The only question is, “Whose morality will be legislated?”
Unfortunately, activist judges often ignore our common “self-evident” morality in order to legislate their own immorality on the rest of the nation.
That must stop if freedom is to survive. All freedom-loving Americans should oppose judicial activists. Even if you agree with Ms. Kagan on certain issues, you should want the people to retain the power to govern themselves. Otherwise, when she disagrees with you, you will have little practical recourse. So, if you want legal abortion or gays in the military, then persuade your fellow citizens and legislators to vote for such measures. Pass a constitutional amendment like we did with slavery and women’s suffrage. That’s what the amendment process is for!
But don’t give up your liberty and the ability to govern yourself by allowing unelected, lifetime-appointed, judges to impose their view of what’s good for America on you and the rest of the country. That's judicial tyranny, plain and simple, and that’s exactly what we’re asking for when we put judicial activists on the Supreme Court.
“Don’t Ask Don’t Tell” is not “a moral injustice of the first order.” Giving up liberty won by the sacrifice of millions is.